Citation Nr: 18144510 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-42 498 DATE: October 24, 2018 ORDER Service connection for degenerative arthritis of the left ankle is denied. Service connection for low back disability, including as secondary to left ankle disability, is denied. A rating in excess of 10 percent prior to October 19, 2015 for left ankle disability is denied. A 20 percent rating from October 19, 2015 for left ankle disability is granted. REMANDED Entitlement to service connection for residuals of right ring finger fracture is remanded. Entitlement to a separate disability rating for malunion of the fibula, claimed as associated with service-connected left ankle disability. FINDINGS OF FACT 1. A preponderance of the evidence is against finding that the Veteran has arthritis of the left ankle. 2. A preponderance of the evidence is against finding that low back disability is secondary to service connected left ankle fracture. 3. Prior to October 19, 2015, the left ankle disability, residuals of left ankle fracture, was not more nearly manifested by marked limited motion. 4. As of October 19, 2015, the left ankle disability, residuals of left ankle fracture, has been more nearly manifested by marked limited motion, but not ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis of the left ankle have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for low back disability, claimed as secondary to a service connected left ankle disability, have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 3. Prior to October 19, 2015, the criteria for a rating in excess of 10 percent for left ankle disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 4. From October 19, 2015, the criteria for a 20 percent rating for left ankle fracture disability are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). For explicitly recognized chronic diseases (38 C.F.R. § 3.309(a)), service incurrence or aggravation may be established under 38 C.F.R. § 3.303(b) by demonstrating continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For arthritis, the disability is considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period service. 38 U.S.C. §§ 1101, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a). Except as provided in 38 C.F.R. § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. This includes any increase in disability not due to normal progression (aggravation). Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 1. Entitlement to service connection for degenerative arthritis of the left ankle. The Veteran contends that he is entitled to service connection for degenerative arthritis of the left ankle. The Board finds that, as left ankle arthritis is not objectively shown, the preponderance of the evidence is the claim of entitlement to service connection for degenerative arthritis of the left ankle. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Although STRs show that the Veteran fractured his left ankle in service and the record shows that he is service connected for left ankle disability with limitation of motion, competent evidence shows normal x-ray findings for the left ankle joint and findings negative for arthritis. A November 2010 VA examination report shows no evidence of arthritis of the left ankle. A December 2010 addendum noted that a November 2010 x-ray of the ankle showed an old fracture, but no significant arthritic changes. A May 2011 private medical record, an MRI showed no osseus or articular abnormalities. Although, an August 2011 private chiropractic report noted an X-ray showing a large amount of “arthrity,” an October 2015 VA examination report indicated that imaging tests did not show arthritis of the left ankle. The Board accepts that the Veteran is competent to report his symptoms, such as pain and limitation of motion. However, these symptoms are considered as part of the Veteran’s current service-connected left ankle disability rating. Also, the Veteran is not competent to diagnose arthritis of the ankle as this is not susceptible to lay observation, but rather is a diagnostic finding based on imaging study. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223 (1992). It is unclear why the Veteran seeks service connection for arthritis since it would not provide for a separate compensable evaluation as his left ankle disability is currently rated based on limitation of motion of the joint. It is noted that arthritis, established by x-ray evidence, is rated based on limitation of motion of joint involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Rules against pyramiding prohibit rating the same disability under various diagnoses. See 38 C.F.R. § 4.14. The preponderance of the evidence weighs against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for low back disability claimed as secondary to a service connected left ankle disability. The Veteran contends that he has low back disability due to altered gait caused by his service connected left ankle fracture. Although the Veteran has a diagnosis of low back arthritis, the preponderance of the evidence is against finding an etiological relationship between the low back disability and the service connected left ankle condition. The claim was initially denied in an April 2011 rating decision that concluded the evidence of record did not show any low back disability incurred in or caused by active service or that any low back disability was diagnosed to a compensable degree within one year following release from active duty service. A February 2012 rating decision, which recognized that the Veteran had been diagnosed with degenerative arthritis of the low back, continued the denial. It is noted that the April 2011 rating decision did not become final as new and material evidence was received prior to expiration of the appeal period. See 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. In an October 2015 VA examination report, the examiner opined that it was less likely than not that the Veteran’s low back disability was proximately due to the residuals of his left ankle fracture. The examiner noted that the Veteran fractured his left ankle in 1971, that it did not require surgery, and healed without deformity. The examiner also noted that the Veteran indicated that his back began to hurt around 2005. X rays dated October 2015 showed degenerative disc disease and degenerative joint disease of the low back. The examiner considered that for an abnormal ankle to result a low back disability there had to be an obvious, marked antalgic gait resulting in abnormal weight distribution. The examiner determined that the Veteran’s gait was essentially normal, with no significant limp. The examiner also noted that degenerative disc disease did not typically result from a distal joint disability. The examiner also found that the absence of an antalgic gait meant there was no mechanism that would lead to an aggravation of the Veteran’s low back condition. The Veteran is competent to report his symptoms, but he is not competent to link his low back problems to service-connected left ankle disability as it is a medical question that is not susceptible to lay observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). On balance, the evidence weighs against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). INCREASED RATINGS Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). A disability may require re evaluation in accordance with changes in a Veteran’s condition. Thus, it is essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Diagnostic Code 5271 provides a 10 percent disability rating for moderate limited motion of the ankle and a 20 percent disability rating (maximum) for marked limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Normal range of motion for the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion. 38 C.F.R. § 4.71, Plate II. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. DeLuca v. Brown, 8 Vet. App. 202 (1995). The terms “moderate” and “marked” are not defined in the above rating criteria. Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are “equitable and just.” 38 C.F.R. § 4.6. 3. Entitlement to an initial rating in excess of 10 percent for residuals of left ankle fracture. The Veteran contends that his left ankle disability, residuals of a left ankle fracture, is worse than the 10 percent rating initially assigned. The Board concludes that the preponderance of the evidence is against a rating in excess of 10 percent prior to October 19, 2015; and the Board concludes that the evidence supports the assignment of a 20 percent evaluation from October 19, 2015. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. Prior to October 19, 2015, the more persuasive evidence of record does not more nearly reflect marked limitation of motion or findings for ankylosis. A November 2010 VA examination report showed no objective evidence of left ankle pain or swelling. X ray findings revealed that the fracture was well healed without evidence of arthritis. Physical examination revealed normal dorsiflexion, but reduced left plantar flexion from 0 to 20 degrees. From October 19, 2015, the evidence more nearly reflects marked limitation of motion of the left ankle, which supports the assignment of a 20 percent rating. An October 2015 VA examination report shows that plantar flexion was limited to 15 degrees. The examiner found no evidence of pain on non weightbearing or weightbearing, no localized tenderness, pain on palpation, or crepitus. The Veteran was able to perform repetitive motion with at least three repetitions and there was no additional functional loss or impairment upon repetitive use. Muscle strength was normal. There was no atrophy, ankylosis, instability or dislocation, “shin splints,” stress fractures, achilles tendonitis, achilles tendon rupture, malunion of calcaneus, or talus. There were no scars and the Veteran did not use assistive devices. Imaging tests did not show traumatic arthritis. The Veteran did not report flare-ups. The Board has considered whether a higher or separate evaluation for either period is warranted under any other potentially applicable provision. However, the Board finds that there is no basis for higher or separate evaluations. To warrant a higher evaluation prior to October 19, 2015, there must be the functional equivalent of “marked” limitation of motion. To warrant a higher evaluation from October 19, 2015, there must be the functional equivalent of ankylosis, which is not shown. In the absence of nerve or muscle impairment, a separate evaluation is not warranted on those bases. 38 C.F.R. §§ 4.73, 4.124a. The Board is sympathetic to the Veteran’s report of pain and altered gait; however, the currently assigned evaluations contemplate his symptoms consistent with 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s attorney argues that a separate disability rating is warranted based on September 2013 private medical findings for malunion of the fibula (distal), left ankle. This matter is addressed in the remand part of the decision below. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability ratings, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than now assigned for either period of time, as explained and discussed above. Additional staging of the rating is not warranted as the factual findings show no distinct period where the disability exhibited symptoms that would warrant higher evaluations than assigned. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, a rating in excess of 10 percent prior to October 19, 2015 for left ankle disability is denied; and a 20 percent rating for left ankle disability from October 19, 2015 is granted. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In considering the effect of section 1111 on claims for service-connected disability, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that the government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153). Aggravation may not be conceded where the disability underwent no increase in seventy during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b), Falzone v Brown, 8 Vet. App. 398, 402 (1995). The Veteran contends that he has right ring finger disability related to an injury in service. He reports that his finger was injured when a tire fell on it in service. The Veteran’s attorney argues that VA has not successfully rebutted the presumption of soundness on service entry because it did not produce or rely on any objective evidence of pre-service injury/disability. See Third Party Correspondence (November 2015). Although enlistment examination dated September 1968 reflects normal clinical evaluation on service entry (except for scar of right lower leg), a March 1970 service treatment record (STR) reflects that the Veteran reported he had fractured his right ring finger approximately 6-years prior to entering service. An examiner noted preexisting deformity at the PIP (proximal interphalangeal) joint. The March 1970 STRs reflect that the Veteran sustained an in service injury to the right ring finger with subsequent complaints of pain and swelling in the same area as the original fracture. An X ray revealed a loose bone chip. After surgery was performed to remove the bone chip, STRs reflect no further complaints or additional abnormal pathology involving the right ring finger to include complaints of pain and swelling. An April 1970 STR shows full range of motion in the joint and no pain after recovery from the surgery. There are no additional service medical records showing complaints of or treatments for a right ring finger condition. April 1971 service separation examination reflects normal clinical evaluation of the upper extremities. In August 2010, the Veteran requested VA compensation for residuals of right hand finger surgery performed in service that removed bone fragments—residuals included deformity and minimal mobility. 1. Entitlement to service connection for right ring finger disability, claimed as residuals of right ring finger fracture and surgery, is remanded. To ensure VA has met its duty to assist, the Board finds that remand is necessary. It is noted the evidentiary burden is quite unique in claims involving whether there is a preexisting disability aggravated by service. In this case, the October 2015 VA medical opinion does not clearly reflect consideration of the standard to rebut the presumption of soundness by showing that clear and unmistakable evidence that the disease or injury existed prior to service and clear and unmistakable evidence that the disease or injury was not aggravated by service. A November 2010 VA medical opinion reflects that that the Veteran had slight loss of motion in flexion and extension was related to the scarring of the PIP joint due to the preexisting injury. The Veteran’s general practitioner, Dr. Hall, submitted a statement contending that the in service surgery to remove bone chip aggravated the Veteran’s preexisting condition although he did not explain any metrics relied upon to reach that conclusion. An October 2015 VA examination report reflects findings for mild reduction in range of motion in the joints of the right ring finger without pain. The examiner opined that there was clear and unmistakable evidence of injury to the right finger prior to service. However, he did not clearly indicate whether there was clear and unmistakable evidence the injury was not aggravated by service—this would include the in-service injury and in-service surgery. Therefore, remand is necessary for an addendum addressing/clarifying this matter. 2. Entitlement to a separate disability rating for malunion of the fibula, claimed as associated with service-connected left ankle disability is remanded. The Veteran’s attorney argues that a separate disability rating is warranted based on September 2013 private medical findings for malunion of the fibula (distal), left ankle. He asserts that the RO violated due process of law when it failed to address head-on this matter in the adjudication of the claim for increase for the left ankle. Hence, to ensure that VA has met its duty to assist and provided due process of law, remand is necessary for a VA medical opinion and then consideration by the RO. The matters are REMANDED for the following action: 1. Obtain an addendum to the October 2015 VA medical opinion addressing the claim of entitlement to service connection for the right ring finger from the same physician or another appropriate clinician. The following should be addressed: whether the disease/injury clearly and unmistakably (undebatable) preexisted the Veteran’s service. If the examiner finds it did clearly and unmistakably preexist service, the examiner must opine whether it was clearly and unmistakably not aggravated (permanently worsened beyond normal progression) by service. If the examiner finds that it either did not clearly and unmistakably preexist service, or was not clearly and unmistakably aggravated by service, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including injury from a tire falling on finger or surgery to remove bone chip. 2. Obtain a medical opinion from an appropriate clinician on whether the Veteran has malunion of the fibula (distal) related to in-service left ankle fracture and/or service-connected left ankle disability. 3. Ensure that the VA medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Adjudicate the remanded matters. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel